C. (A.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 4, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000714-ME
A. C., A MINOR
v.
APPELLANT
APPEAL FROM JESSAMINE FAMILY COURT
HONORABLE C. MICHAEL DIXON, JUDGE
ACTION NO. 07-J-00211
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
VACATING AND REMANDING
AND
DENYING MOTION TO DISMISS
** ** ** ** **
BEFORE: CAPERTON AND MOORE, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
MOORE, JUDGE: A. C., a female child, appeals the order of the Jessamine
Family Court finding her in contempt of court and ordering her to be detained until
placed in a home by the Cabinet for Health and Family Services (Cabinet),
Department for Community Based Services (DCBS), but for no more than thirty
1
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
days. The Commonwealth of Kentucky moves to dismiss the appeal on the basis
that it is moot because A. C. has been released from the DCBS’s commitment.
After a careful review of the record, we vacate the family court’s order because it
is beyond dispute that A. C.’s probation period expired before the court found her
in violation of a valid court order, i.e., a juvenile probation violation. We deny the
Commonwealth’s motion to dismiss because the issues involved in this appeal are
not moot.
The unfortunate circumstances that have intertwined and culminated
in the appeal before us began in June 2007, when a juvenile complaint was filed
against A. C., contending that she was “beyond control of [her] parent,”
specifically, her mother. According to the “Preliminary Inquiry Formal/Informal
Processing Criteria and Recommendations” filed in the record on June 11, 2007, A.
C. “requested a Formal Court Hearing.” Also listed on the form is that “[t]he case
is not appropriate for Informal Processing, it is recommended that this case be
referred to court for a formal hearing or formal adjustment.”
Pursuant to KRS2 610.080,
Juvenile proceedings shall consist of two (2) distinct
hearings, an adjudication and a disposition, which shall
be held on separate days unless the child, after
consultation with an attorney, waives the right to formal
predisposition investigation report and moves that the
hearings be held the same day. However, if the
disposition is to be commitment, the child’s waiver shall
not be valid without the consent of the Department of
Juvenile Justice or the cabinet.
2
Kentucky Revised Statute(s).
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(1) The adjudication shall determine the truth or
falsity of the allegations in the petition and shall be
made on the basis of an admission or confession of the
child to the court or by the taking of evidence.
(Emphasis added).
Pursuant to KRS 610.070,
(1) All cases involving children brought before the court
whose cases are under the jurisdiction of the court shall
be granted a speedy hearing and shall be dealt with by the
court without a jury.
(2) The hearings shall be conducted in a formal manner,
unless specified to the contrary by other provisions of
KRS Chapters 600 to 645.
On June 28, 2007, a “proceeding” took place in the family court.
Evidence was not taken, and the record does not reflect that A. C. admitted to the
charge of being beyond control, in violation of KRS 610.080. Nonetheless, on
appeal, A. C.’s counsel states that “it is possible, based upon the comprehensive
order entered by the family court judge on June 28, 2007, that an agreement was
reached between the County Attorney and defense counsel. Likewise, since a
predisposition investigation report (PDI) was never submitted by the Cabinet for
Health and Family Services (Cabinet), nor was a separate disposition hearing held,
the agreement was likely intended to be an admission to the charge in exchange for
the order of a one (1) year probation period.” With due candor to the Court, the
Commonwealth at oral argument before this Court conceded that it cannot explain
the silent record and proceedings.
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This Court has said frequently that the court speaks only by its written
record. Holland v. Holland, 290 S.W.3d 671, 675 (Ky. App. 2009). The present
case illustrates why this is imperative. Despite the silent written record, nothing
the family court stated on the record leads to the conclusion that A. C. actually
admitted to the status offense. Given the numerous other irregularities in this case,
it is just as possible that no agreement was in fact made. Nonetheless, even
assuming that A. C. had admitted to the charge brought against her, the family
court had the obligation to hold a hearing under Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See D.R. v. Commonwealth, 64 S.W.3d 292
(Ky. App. 2001), as applied and analyzed in J.D. v. Commonwealth, 211 S.W.3d
60, 62-63 (Ky. App. 2006),
Boykin is the seminal case in the arena of the validity of a
guilty plea. In Boykin, the U.S. Supreme Court stated
that “[s]everal federal constitutional rights are involved
in a waiver that takes place when a plea of guilty is
entered in a state criminal trial. . . . We cannot presume a
waiver of these [ ] important federal rights from a silent
record.” [Boykin] 395 U.S. at 243, 89 S.Ct. 1709. The
Supreme Court ultimately held that the trial court
committed error when it “accept[ed] petitioner’s guilty
plea without an affirmative showing that it was
intelligent and voluntary.” Id. at 242, 89 S.Ct. 1709. In
D.R., this Court stated that “it [is] beyond controversy
that Boykin [ ] applies to juvenile adjudications.” 64
S.W.3d at 294, FN2. The D.R. court went on to state
that:
The validity of a guilty plea must be determined
not from specific key words uttered at the time the
plea was taken, but from considering the totality of
circumstances surrounding the plea. . . . These
circumstances include the accused’s demeanor,
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background and experience, and whether the
record reveals that the plea was voluntarily made.
Id. at 294.
The Sixth Circuit Court of Appeals has also weighed in
on this issue in a federal case arising out of the Western
District of Kentucky, for which the juvenile had counsel.
In Laswell v. Frey, 45 F.3d 1011, 1015 (6th Cir. 1995),
the court stated:
Upon review, this Court notes that an adjudication
demands a determination of the truth or falsity of
the allegations, and that a determination of the
truth requires more than the simple verbal
admission at the detention hearing at issue in the
instant case. The Court is persuaded that, because
no inquiry was made of the veracity of the charges
or admission, because no inquiry was made to
determine if “the plea” was voluntarily made, and
because no inquiry was made as to the nature of
the charges, that the proceedings cannot later be
transformed from a determination of probable
cause for detention into an acceptance of a valid
guilty plea.
Our review of the record reveals that the district court
explained J.D.’s Boykin rights to him only during the
August detention hearing related to the terroristic
threatening charge. However, the district court did not
specifically review these rights in the context of his
decision to admit to both the terroristic threatening and
assault charges the following month. In fact, J.D. had
never been apprised of his Boykin rights in relation to
either the assault or beyond control charges. Thus, there
is no evidence in the record to establish that his
admission to the charges was voluntary and intelligent at
the time it was entered. The situation in this case is quite
similar to those of D.R. and Laswell, although J.D. was
represented by counsel, unlike D.R. in his case.
The record in the present case shows that under any test,
the bare minimum for compliance with Boykin was not
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met. We recognize that juvenile proceedings are by
nature less formal than adult proceedings; and we are
aware of the great number of cases most district judges
handle. However, juvenile adjudication proceedings
must meet constitutional muster, and this one does not.
There was no colloquy whatsoever; and from the record
it appears that the juvenile’s attorney responded to the
district judge’s questions at the adjudication. Under KRS
610.080(1), “[t]he adjudication shall determine the
truth or falsity of the allegations in the petition and
shall be made on the basis of an admission or
confession of the child to the court or by the taking of
evidence.” (Emphasis added).
Based upon binding precedent, we must hold that the
district court improperly accepted J.D.’s admission of
guilt without first informing him of his Boykin rights at
the time it accepted the plea, a step necessary to
establishing that his plea was voluntary and intelligent.
Accordingly, the district court should have granted J.D.’s
motion to set aside the adjudication and disposition. The
circuit court, in turn, committed reversible error in
affirming the district court's ruling.
(J.D. v. Commonwealth, 211 S.W.3d at 62-63)(underline added; internal notes
omitted).
Despite the generous interpretation given by A. C.’s counsel on appeal
of what actually took place at the proceeding on June 28, 2007, without a Boykin
procedure, even an admission to the status offense could not have passed
constitutional muster pursuant to J.D. Nonetheless, on that same day, the written
record reflects that the family court entered a “Juvenile Status Offender Order” and
found that A. C. was a status offender because she was beyond the reasonable
control of her parents pursuant to KRS 600.020. The court ordered A. C. to: not
leave her home without custodial permission; obey all rules of her home; attend all
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school sessions on time, have no unexcused absences and no behavior problems at
school; not violate the law; maintain at least passing grades in school; and not
consume, use, or possess any alcoholic beverages, tobacco products or illegal
drugs. The court further ordered A. C. to serve one year of probation and undergo
a mental health assessment, which was conducted. And, the court entered a preauthorized pick up order for A. C., stating to her that if she violated the terms of
her probation, she would be taken to jail and the court would not have to be
bothered while “sleeping in bed” at night to sign any orders in regard to her.
Unfortunately for A.C., this order was not timely appealed although the
proceedings ignored constitutional and statutory mandates for juvenile
proceedings. Accordingly, we are without jurisdiction to reverse this order. See
Kentucky Rule(s) of Civil Procedure (CR) 73.02(1)(a).
While A. C. was serving her probationary period, which was to end on
June 28, 2008, a dependency, neglect and abuse (DNA) petition was filed
concerning A. C in March of 2008.3 The DNA petition stated that there were
allegations of physical abuse, emotional abuse, and neglect by A. C.’s mother and
stepfather toward A. C. During one of the early proceedings in the DNA case, the
stepfather stated that “either [A. C.] goes or he goes (from home).” The court
specifically asked A. C.’s mother, in the presence of A. C., who she was going to
choose. Although A. C.’s mother tried to explain that the family needed help to
remain intact, the court asked her to make the choice of either her husband or her
3
The DNA petition was originally filed under the status offense case number, 07-J-211-001, but
the case number for the DNA case subsequently changed in the record to 07-J-211-002.
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daughter despite the fact that A. C. had lived with her mother and stepfather for
eleven years. When A. C.’s mother did not make a clear choice, the court entered
an order directing A. C. to be placed with her father. A. C. was directed to have no
contact with her stepfather, but she was permitted to have supervised visits with
her mother. From statements made on the videotapes of subsequent proceedings,
A. C.’s mother was only able to have very little visitation with A. C., and A. C. had
no visitation with her stepfather, although she expressed a desire to do so.
An adjudication hearing was held in the DNA case. A. C. recanted an
earlier statement she had made that her stepfather had hit her one time but did
acknowledge that he raised his hand as if he might hit her. A. C.’s testimony
included that she wanted to go back home with her mother and stepfather because
she had lived with them for eleven years but knew they needed parenting help. A.
C.’s mother was again questioned regarding why she had chosen her husband over
her daughter and again she stated she was just trying to keep her family together.
The court held the mother to her “choice.”
In the adjudication order, the court found A. C. to be neglected and
abused, finding specifically that
[A. C.] attempts to recant her earlier statements,
unpersuasively. She [sic] explainations [sic] for the
change are internally [and] externally inconsistent [with]
other facts. She has been abused and continues to be at
risk—mother is unable or unwilling to protect her.
A. C. remained in the custody of her father. She only had supervised
visits with her mother, and apparently no contact with her stepfather.
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In September 2008, a dispositional hearing was held in the DNA case.
Most of the audio of the videotaped proceedings is inaudible, and the record
scarcely records what occurred. The order entered on September 25, 2008, in the
DNA action called it a “close case,” which we assume was supposed to read
“closed case.” The written order also provides “diversion for Mr. Corman’s
informational purposes.” There is no explanation of what this means.
The DNA case was therefore closed in September of 2008 and A. C.’s
probation on the status offense ended in June of 2008, disposing of that matter. At
oral argument before this Court, A. C.’s counsel argued that upon the final
disposition of the DNA case and the status offense case, there was no longer an
open case over which the family court could exercise particular case jurisdiction.
The Commonwealth conceded that both cases were closed and that with these two
cases closed, there is not a pending open case in family court regarding A. C.
Despite the fact that there are no longer any pending cases against A.
C., in March 2009 a summons was issued in the DNA action, in which the father
was ordered to appear and bring A. C. to court. The Cabinet also filed a “motion
to review,” in which the case worker requested that the case “be brought before the
court for status review.” The case worker wrote in the motion as follows: “There
have been some behavior problems in school and at home. [A. C.] is currently
living with her grandmother but father still retains custody. This worker believes it
would be in her best interest to review her case status with the court.” Although no
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case number was specified on this “motion to review,” the motion was filed as part
of the record in the DNA action.
The Cabinet’s “motion to review” was heard by the family court. But
rather than focusing on the DNA action, the proceedings focused on a contempt
charge against A. C. for the alleged violations of her probation, despite the fact that
her probationary period had expired on June 28, 2008. A. C. received no notice
until she appeared in court that she was there for a proceeding regarding violation
of a court order or her probation terms.
A. C. was with her grandmother; A. C.’s mother was in California at
the time of the hearing. It is unclear from the record under what statutory authority
the court held the proceedings. At oral argument before this Court, neither A. C.’s
attorney nor the Commonwealth could identify under what authority the family
court assumed particular case jurisdiction.
Adding further insult to this untenable situation, at the “proceeding”
the family court heard more than five minutes of arguments from the Cabinet, the
County Attorney, the Guardian Ad Litem (GAL), and the attorneys for both of A.
C.’s parents concerning A. C.’s allegedly bad behavior without A. C.’s appointed
counsel being present for those arguments. A. C. stood without counsel, with only
her grandmother at her side.
Much of the audio from the proceedings is difficult to understand, but
it appears that unidentified persons speaking alluded to allegations that A. C. and a
sibling had made against A. C.’s father regarding physical abuse. However, the
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record before this Court contains no such allegations or petitions filed against the
father. The father’s attorney stated that the father was fearful regarding what
allegations A. C. might make in the future. The GAL stated that A. C. has said
things against her father that proved to be unsubstantiated, but the record before
this Court does not bear that. This Court attempted to clarify this at oral argument,
but neither attorney was aware of a written petition filed in regard to these
allegations. And, again, in the presence of A. C., the family court noted that her
mother had chosen her husband over A. C. When discussing where A. C. should
be placed, the court stated that the mother was out of the question because she had
made her election of her husband over A. C. The court stated directly to A. C. that
she had “probably played [her] last card.” A. C. requested to speak but her request
was denied by the court. In response, the court stated that A. C. should go out in
the hall and talk to her lawyer. A break was taken for A. C. to do so.
After A. C. had an opportunity to speak with her attorney, the attorney
pointed out to the court that no evidence had been taken on any of the alleged
violations of A. C.’s probation.4 A. C.’s attorney also pointed out that, although
the Cabinet believed there was no discipline in A. C.’s grandmother’s home, no
evidence had been taken on that issue or whether A. C. was actually doing better
while she was living with her grandmother. Additionally, A. C. made no
admission to the allegations against her.
4
Remarkably, although the record is clear that nothing extended A. C.’s probation beyond June
2008, no one noted it during the proceedings.
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Despite that in its DNA adjudication order of May 7, 2008, the family
court (1) specifically found A. C. to have been abused and neglected, and (2) found
that A. C.’s attempts to recant her statements that her stepfather had hit her one
time were “internally and externally inconsistent,” at the March 2009 proceeding
the court stated in A. C.’s presence that she had found a way to manipulate her
stepfather and in essence wanted to use those same methods against her father.
The court also stated that A. C. had found a way to make it “jump,” referencing her
statements regarding the petition in the earlier DNA action. The court further
stated that A. C. had learned how to manipulate with lies and tears and sometimes
had “pulled [its] strings, but this time it’s not.” Thereafter, the court stated directly
to A. C. and in reference to her that “[its] heart was stone.”
The family court then revoked A. C.’s probation on the spot, ordering
her to “[r]emain detained until placement by DCBS not to exceed 30 days.” She
was immediately taken out of the courtroom and detained despite flagrant due
process violations; the fact that no evidence was taken nor was there an admission
to the alleged violations; the expiration of her probationary period; and the court’s
failure to provide a written explanation of the evidence it relied upon. On the form
titled “Juvenile Status Or Delinquency Disposition,” under the findings of fact and
conclusions of law section, the court merely wrote that A. C. was found to be in
“violation of VCO [Valid Court Order],” yet there was in fact no valid court order
at the time for A. C. to have violated. The court adopted recommendations from a
dispositional report. We assume that the “dispositional report” to which the court
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was referring was the juvenile probation violation that was included in the record
and filed on the same day that the disposition was entered. According to that
juvenile probation violation form, the violations A. C. had committed were as
follows: (1) she missed several days of school; (2) she left her father’s care and
did not have contact with him for two weeks and she changed schools; and (3) she
had not been following the rules in her father’s home. As noted, no evidence was
taken on these allegations, and A. C. did not admit to them. Remarkably, it was
not explained nor explored how a fifteen-year-old was able to switch schools
without adult assistance or permission.
Turning to the issue of A. C.’s detainment after the March 2009
proceedings, we first consider the Commonwealth’s claim that the appeal should
be dismissed as moot. In support of its motion, the Commonwealth attached a
letter from the Cabinet stating that A. C. had “been released from commitment to
the Cabinet. . . . As of 11/19/09 [A. C.] is in the custody of her sister. . . . Please
see the attached Court order.” The court order to which the Cabinet was referring
was a docket sheet with the status offense case number at the top, and at the
bottom, the following handwritten notes: “(1) DCBS commitment ends[;] (2)
custody to [A. C.’s sister;] (3) Dec. 17, [20]09 review[; and] (4) support to be paid
to custodian.”
A. C. included with her response in opposition to the
Commonwealth’s motion to dismiss a letter from the same Cabinet worker
clarifying that A. C. had
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been released from commitment to the Cabinet. . . . As
of 11/19/09 [A. C.] is in the custody of her sister. . . .
According to our records [A. C.] was probated to the
Court and the Court requested DCBS to supervise that
probation [on] 1/17/2008. It is unknown whether or not
an end date was given for the probation. To the
knowledge of this agency, [A. C.’s] status offense
remains under review of the Court. The next review date
in Jessamine Co. Family Court is scheduled for 12/17/09.
The Commonwealth concedes that there is no actual case before the family court in
regard to A. C. and, therefore, no particular case jurisdiction, yet the family court
continues to hold status review hearings.
There typically must be an actual controversy in a case before a court
will review the issues involved in the case. If no such controversy exists, the case
is rendered moot. However, a court will review even a moot case if the issues
involved in the case are “capable of repetition, yet evading review.” Philpot v.
Patton, 837 S.W.2d 491, 493 (Ky. 1992) (internal quotation marks omitted).
The decision whether to apply [this] exception to the
mootness doctrine basically involves two questions:
whether (1) the challenged action is too short in duration
to be fully litigated prior to its cessation or expiration and
[2] there is a reasonable expectation that the same
complaining party would be subject to the same action
again.
Id. (internal quotation marks omitted).
In the present case A. C.’s status offense—although her probation
period has long since passed—is still being subjected to review and, in fact, a
review hearing was scheduled at that time for December 17, 2009. Thus, because a
status offense review hearing was scheduled by the family court and the court was
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necessarily proceeding, as was the Cabinet, under the erroneous assumption that
the court retained jurisdiction over A. C.’s status offense, and that her period of
probation had not expired, this Court will review this issue.
A. C. was released from the Cabinet’s commitment because she had
served her maximum of thirty days of detention. However, thirty days is too short
a period of time for the propriety of the commitment to be fully litigated prior to its
cessation. Additionally, the Cabinet and the family court continue to hold review
hearings concerning A. C.’s status offense, so there is a reasonable expectation that
A. C., who is still a minor, may again be detained by the Cabinet, particularly
given the flawed history of the proceedings in this case. Therefore, this case meets
the exception to the mootness doctrine. Accordingly, the Commonwealth’s motion
to dismiss this appeal as moot is denied.
In its appellate brief, the Commonwealth also asserts that this Court
should not review any issues pertaining to A. C.’s commitment to the Cabinet
pursuant to the doctrine of invited error. The Kentucky Supreme Court has held as
follows:
Although most criminal cases addressing the issue of
invited error do so in the context of a criminal
defendant’s waiver of his right to a jury trial, . . . the
rationale behind the notion that one cannot commit to an
act (such as waiving a jury trial) and later complain on
appeal that the trial court erred to his detriment is equally
applicable when a criminal defendant fails to act (such as
foregoing the opportunity to question a witness). . . . A
defendant cannot complain on appeal of alleged errors
invited or induced by himself, particularly where . . . it is
not clear that the defendant was prejudiced thereby.
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Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006) (internal quotation
marks omitted).
The doctrine of invited error does not apply to the present case. A.
C.’s due process rights were violated. And, nothing in the record supports that A.
C. knowingly and voluntarily waived any of her rights. In fact, the only time she
was even permitted to speak was during her testimony in the DNA case. When she
asked to speak at the “contempt” proceedings, she was not permitted to do so.
Nothing in the record reflects that the family court conducted any colloquies into
whether she intended to waive any of her constitutional rights. These were not
errors that she invited by knowingly waiving her constitutional rights. She
certainly did not benefit from any of the errors; rather, she suffered from them on
more than one occasion, including spending thirty days in detention. These were
errors that occurred through no fault of A. C.’s. In fact, she was brought into court
regarding the DNA action, then she was essentially blindsided by the
Commonwealth and the court with the charge of contempt in the status offense
action. Therefore, the Commonwealth’s allegation that the doctrine of invited
error applies to this case lacks merit.
Moving to the contents of A. C.’s arguments before this Court, A. C.
acknowledges in her appellate brief that her issues are not preserved. However,
she contends that we should review it for palpable error. We agree.
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Kentucky Rule(s) of Criminal Procedure (RCr) 10.26 provides as
follows: “A palpable error which affects the substantial rights of a party may be
considered . . . by an appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.” Because of the numerous due
process violations A. C. suffered, we will review this issue.
Certain due process requirements must be met before a defendant’s
probation may be revoked. “Although the State has a great interest in
reincarcerating those individuals who are unable to meet the conditions of their
probation, it may not do so without first affording an individual the minimum
requirements of due process.” Robinson v. Commonwealth, 86 S.W.3d 54, 56 (Ky.
App. 2002).
[T]hese requirements include: (a) written notice of the
claimed violations of [probation]; (b) disclosure to the
[probationer] of evidence against him; (c) opportunity to
be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation); (e) a neutral and detached hearing body
such as a traditional parole board, members of which
need not be judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence relied on
and reasons for revoking [probation].
Robinson, 86 S.W.3d at 56 (internal quotation marks omitted).
In Commonwealth v. B. J., 241 S.W.3d 324 (Ky. 2007), the Kentucky
Supreme Court noted that status offenses “are neither criminal nor delinquent.” B.
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J., 241 S.W.3d at 327. The Court continued, noting that proceedings against a
child for a status offense may
result in severe consequences to that child. T. D. v.
Commonwealth, 165 S.W.3d 480, 483 (Ky. App. 2005).
In light of these potentially severe consequences to the
child, due process must be afforded, despite the noncriminal nature of juvenile proceedings. [W]here the
fault of the child is at issue and penalties, including loss
of liberty, may attach, criminal protections provided by
the constitution apply. Id.
B. J., 241 S.W.3d at 327 (internal quotation marks omitted).
In Q. C. v. Commonwealth, 164 S.W.3d 515 (Ky. App. 2005), a
juvenile’s probation was revoked, and this Court held that “due process required
the Commonwealth to serve him with written notice which set forth the specific
grounds that constitute the alleged probation violation.” Q. C., 164 S.W.3d at 517.
The Court continued, noting that if “the Commonwealth fails to give adequate
written notice, then the lack of proper notice may be a ground for reversal.” Id.
In the present case, A. C. was not provided written notice of the
specific grounds constituting her alleged probation violation prior to appearing in
court. Furthermore, pursuant to KRS 610.265(3)(d) and KRS 610.060(2)(a), the
court erred when it heard arguments from the Cabinet, the County Attorney, the
GAL, and the attorneys for A. C.’s parents for more than five minutes during the
hearing without A. C.’s counsel being present to represent her. However, A. C.
was given the opportunity to speak with her attorney prior to the family court
finding her in contempt for violating the terms of her probation. Nonetheless, no
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evidence was taken on the alleged violations, and A. C. did not admit to them. The
family court also failed to provide a written statement as to the “evidence” it relied
upon in support of its finding of contempt and its decision to revoke her probation.
Accordingly, the proceeding which led to A. C.’s detention was replete with due
process violations.
We agree with A. C. that the order of March 12, 2009, must be
vacated because the family court had no jurisdiction to hold her in contempt once
the 2007 status offense action expired pursuant to the terms of A. C.’s probation.
The Commonwealth contends that, pursuant to KRS 620.025, when
the DNA action was filed approximately nine months after the family court entered
its June 2007 order in A. C.’s status offense case, the DNA petition acted to
suspend all proceedings in the status offense case. We disagree with this
interpretation.
Kentucky Revised Statute 620.025, upon which the Commonwealth
relies, states:
A finding of jurisdiction under this chapter shall not
necessarily preclude a finding of jurisdiction under KRS
Chapters 625, 630, or 635; however, jurisdiction under
this chapter shall take precedence. No child shall be
released from the jurisdiction of the court under this
chapter if concurrent complaints under KRS Chapters
630 or 635 are pending.
Although the plain wording of the statute provides that DNA actions take
precedence over status offense actions, it does not provide that status offense
actions should be suspended upon the initiation of a DNA action, contrary to the
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Commonwealth’s assertion. Furthermore, the Commonwealth has cited no other
authority in support of this assertion.
Although there is no statutory merit to the Commonwealth’s
argument, it would not apply in this situation assuming we agreed with it. By the
time the petition in the DNA was filed, A. C. had already been on probation from
June 2007 to March 2008; this is approximately nine months, leaving her with
three months left to serve. The DNA case was closed in September 2008. So,
even if we agreed-- which we do not-- with the Commonwealth’s theory, A. C.’s
probation expired at the latest in December 2008, well before the March 2009
“motion to review.” Therefore, the Commonwealth’s argument lacks all merit.
Accordingly, the Commonwealth’s motion to dismiss this appeal is
denied. Additionally, the order of the Jessamine Family Court finding that A. C.
violated its June 2007 status offender order is vacated. This matter is remanded to
the family court with instructions that case no. 07-J-211-001 be closed and
discharged.
The Court is aware that family courts have heavy dockets and that the
juvenile portion of their dockets may take a great deal of those courts’ time and
energy. However, juvenile proceedings must meet constitutional muster. J.D., 211
S.W.3d at 63. This one did not.
The Court notes that a review of the proceedings in this matter reveals
an apparent dysfunctional family and a child in need of assistance. The purpose of
juvenile proceedings is to assist the child and the family, not to employ methods
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that further break down the family unit. In this case, A. C.’s mother was called on
to make a choice between her child and her husband in the presence of the child,
while asking for assistance to keep the family unit together. And, although the
family court had found A. C. to be an abused and neglected child, the court later
used her allegations of abuse to reference that she had learned to manipulate the
court and stated that the court’s “heart is stone” in reference to her. Certainly, A.
C. has troubles, but a family and child in trouble should not be further torn apart by
the system that is in place to provide stability and reunification.
ALL CONCUR.
ENTERED: June 4, 2010
/s/ Joy A. Moore
JUDGE, COURT OF APPEALS
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rebecca Hobbs
Frankfort, Kentucky
Jack Conway
Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Gail Robinson
Frankfort, Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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